Voucher System Regulations - Observations, Comments

Saturday, February 14, 2004 | 0

The CA Division of Workers' Compensation has posted on their DWC Forum the proposed rules and forms for implementing the Vocational Voucher program recently enacted as a part of the 2004 reform laws. The response has been almost overwhelming. We have distilled the observations into the key points, but the overall theme seems to be to make it more simple and better define the time requirements.

Time Frames

The rules provide time frames for the carrier to issue the voucher, but no time frames for the carrier to issue the check to the injured worker or to the school.

There are 10 days to issue notice but there may be only a verbal report or the PD description may not be rateable as authored. What do we do then if the injured worker requests the voucher and we still do not have a rateable report?

Problems will arise if the employer needs to offer modified or alternative work within 30 days of the cessation of TTD because medical reports are seldom received in that time frame. It may be better to allow 30 days from the receipt of the physician's written work restriction to allow employers time to offer modified or alternative work.

The "reply" card choices suggest a five year statute if the employee defers his/her decision, but provides no end date if they decline.

.60 days is insufficient time for obtaining the P&S report, seeking modified/alternative work and getting the voucher out.

There should be timeframes for reply by the employer regarding mod/alt work - if there is no response in 60 days from receipt of the P&S report then assume there is no work unless the parties agree otherwise.

If the applicant declines the voucher when the offer is made and changes his/her mind later on, are they still entitled to it? Is there any timeframe for which they have to accept/reject other than the 30 days? How long do they have to use/request the voucher?

Permanent Disability

Who determines the level of permanent disability, PTP, panel QME, defense QME, applicant QME?

Proposed section 10133.52 provides that if no award has issued the amount of the voucher shall be based upon an informal rating award - there is no such thing as an "informal rating award."

There may be several informal ratings in a case, which may be inaccurate - what is to happen when there is a dispute on the rating?

There has to be some provision of how to pay the voucher when PD is in dispute and no WCAB award has been issued.

Wouldn't it be more reasonable and consistent with present processes that the voucher amount be predicated on "estimated" P.D. in cases where the Appeals Board has not made an award determining the amount of P.D.?

What happens if the employer sends a voucher for one amount of PD level, and it later changes - will the employer be able to claim credit for any over payment?

Work Offers

What happens if the employee quits, is laid off or moves out of the area where the employer is located and therefore work cannot be offered within 60 days?

The regulations should open the way to permit workers to use the voucher for self-employment purposes.

What happens when the injured worker returns to work with restrictions under an employer accommodation, but the employer can not make an accommodation on a permanent basis once the IW is determined P&S?

Notice

The proposed notice form is more than just a notice of rights; it is an offer of a voucher and a request for reply by the employee. This fails to consider cases where TD ends because there is a full release to work or return to temporary transitional duty early in the case when PD is unknown, as is eligibility for the job displacement benefit, since permanent return to work is unclear. The proposed regulation provides that the notice/offer must be sent even if the employee is back to his/her usual job.

Based on the proposed language carriers are required to send an initial notice upon termination of TTD, which means the notice will be sent to every claimant wherein TTD has been terminated, including those employees who returned to full duties.

Notices are to be sent certified, which increases the costs and SB 228/AB 227 was supposed to reduce costs.

The Notice is an invitation to pursue permanent partial disability - why is it necessary to spell out the levels of potential reimbursement, when at this point, we are simply alerting the employee to a potential benefit?

How are they going to know what to do with the voucher when they may not have a vocational goal as to what they want to do and don't know how to go about looking for a school if they do have a goal in mind?

Employer Involvement

There is no reason to involve the employer in the selection, use or monitoring of the VRTWC. The employer's sole obligation is to provide the supplemental job displacement voucher. The money in the injured worker's, the use of the counselor is at their discretion and there is no reason that there needs to be agreement, reporting etc for this process.

Proposed section 10133.55 and the voucher form itself state that the voucher is issued "as a direct reimbursement to the employee", which implies reimbursement can only be made to the employee - the regulations should enable the administrator/employer to also pay providers directly to avoid disputes that may arise over advancing money to the employee who cannot afford to pay up front.

There is also no statutory authority for subsection "f" allowing the AD to order an employer to make payment at their own expense (presumably in addition to the voucher).

Enforcement & Fraud

The SJDB voucher mechanism is essentially a "promise to pay" the training but there is no provision for the "delay of such payment" to the training facility or VRTWC.

The Voucher form should require a confirming signature of a VRTWC.

The rules should note the VRTWC is required to evaluate and designate a proper facility to prevent harvesting of vouchers by a group of schools that are bypassing an impartial evaluation by the independent counselor.

Make the use of VRTWCs mandatory to ensure that injured workers do not end up in training plans that are inappropriate.

How do Vocational Rehabilitation Counselors get on the list to be a VRTWC?

Dispute Resolution

There should be parameters for the dispute process. It needs to be made clear what the A.D. will and won't have jurisdiction over such as disputes regarding the value of the voucher.

It's not clear why there is a dispute process regarding the selection of a VRTWC.

The dispute process to argue the offer of RTW mod/alt work by the employee is may violate due process since there is no provision to pay for legal counsel and the counselor who is needed to testify about the "offer" and its validity.

The above is a summary only of all of the many comments posted regarding the proposed voucher regulations. Full comments can be viewed, and added, at www.dir.ca.gov/dwc/DWCWCABForum/3.asp?ForumID=22&RegID=141.

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